Monday, 22 January 2018

The EU Court of Justice rules on the Schengen Conundrum: a non-EU citizen with expulsion order in one Member State and a valid residence permit in another Member State

Professors Elspeth Guild, Queen Mary University of London and Kingsley Napley,
and Steve Peers, University of Essex

What happens if a non-EU citizen
has a residence permit from one Member State, but another Member State wants to
expel him? The Court of Justice addressed this issue for the first time in its ruling
last week in the case of E.

Background

This issue is complicated because
there are two different relevant sources of EU law, which have not been linked
very clearly. First of all, Article 25 of the Schengen Convention, as amended
in 2010, states that if a Member State considers issuing a residence permit or
long-stay visa, it shall search the Schengen Information System (SIS), which
(among other things) contains a list of non-EU citizens banned from entry into
the EU. Each listing is called an ‘alert’. If there is an alert on the person
concerned, the Member State that wants to issue the residence permit or
long-stay visa shall consult the Member State which issued the alert and ‘take
account of its interests’, granting a residence permit or or long-stay visa only
for ‘substantive reasons…notably on humanitarian grounds for by reason of
international commitments’. If a residence permit or long-stay visa is issued,
the alert in the SIS must be withdrawn, but the Member State which issued it
can keep the person concerned on a national list of alerts. There’s also an
obligation to check national records of long-stay visas or residence permits
before issuing alerts.

A similar rule applies the other
way around: if it turns out that an alert has been issued for a non-EU citizen
who holds a residence permit or long-stay visa from another Member State, the
Member State which issued the alert must consult the Member State which issued
the residence permit or long-stay visa, to see if there are ‘sufficient
reasons’ for withdrawing the permit. In these cases there is more discretion
for the State which had already granted residence: there is no threshold to
justify continuing the residence permit in force. If the residence permit or
long-stay visa is not withdrawn, again the State issuing the alert must
withdraw it from the SIS, but can keep the person on a national list of people
banned from entry. It’s this second rule which was at issue in the E case.

But the Schengen rules concern
only SIS alerts based on entry bans, not the issue of expulsion or the entry
bans as such. Those issues are dealt with by the Returns
Directive, which in principle requires Member States to expel non-EU
citizens who are present irregularly. Usually they must be expelled to non-EU
countries, but there’s an exception if they have a residence permit or other
right to stay issued by a Member State. In that case they must go to that other
Member State immediately. If they don’t comply, or if their immediate departure
‘is required for reasons of public policy or national security’, then they can
be expelled directly to a non-EU country.

The Returns Directive also
requires Member States to issue EU-wide entry bans in many cases where
expulsion decisions have been issued. However, it does not expressly set out the
obvious implication that this means an alert must be issued in the SIS. A Commission
proposal
from 2016 fills this gap. That proposal also incorporates the current rules on
consultation where there is a conflict between an alert and a residence permit
or long-stay visa, with some amendments. This proposal is likely to be agreed
soon, as both the European
Parliament and the Council
adopted their negotiation positions on it late last year. A parallel proposal
on use of the SIS at borders would also regulate the link between the Returns
Directive and the SIS in its Article 24, and furthermore repeal Article 25 of
the Schengen Convention. It remains to be seen whether the recent judgment might
impact the discussions of the legislators on these proposals.

The Facts

A Nigerian national, E, who held
a valid residence permit issued by Spain and had lived there for 14 years (and
had family ties there) was convicted of a narcotics offence in Finland and
sentenced to five years imprisonment (subsequently commuted to a suspended
sentence). The Finnish authorities ordered E’s immediate expulsion to Nigeria
on grounds of public order and national security together with an entry ban on
his return. In accordance with their obligations under Article 25 of the
Schengen Convention, the Finnish authorities contacted their Spanish
counterparts to consult on whether there were sufficient reasons to withdraw
the residence permit. The Spanish authorities did not respond.

On a second request by the
Finnish authorities, their Spanish counterparts asked for a copy of the judgment
convicting E (which the Finnish authorities sent). Thereafter, and following
two unsuccessful attempts to consult the Spanish authorities, it seems that the
Finnish authorities sought to carry out their order. In the meantime, E became
irregularly present in Finland as he had stayed there more than 90 days out of
the previous 180, which is the limit on movement of non-EU citizens (including
those holding a residence permit from another Member State) under the Schengen
system.E appealed and the Finnish
Supreme Administrative Court stayed the proceedings and asked the Court of
Justice to clarify whether Article 25 CISA permits the expulsion to Nigeria of
E without the completion of the mandatory consultations with the Spanish authorities.

The issue was complicated by the
fact that Article 25 of the Schengen Convention on its face is designed to
resolve conflicts between Member States regarding conflict between residence
permits and SIS alerts. There is no obvious place for the individual in the
process. So the Finnish court also asked whether E could rely on Article 25
CISA at all.

The Court’s reasoning

The first question the Court had
to resolve was when consultations between States must take place. The Court had
regard to the objective of Article 25 of the Schengen Convention. In its view
this objective is ‘to avoid a contradictory situation in which a third-country
national is both holder of a valid residence permit issued by a Contracting
State and the subject of an alert for the purposes of refusing entry in the
Schengen Information System’ (para 38). This objective must be read in conjunction
with the principle of loyal cooperation in Article 4(3) TEU which means,
according to the Court, that the consultation procedure should be initiated as
quickly as possible (para 39). For this reason, the Court found that when a
state is contemplating issuing an expulsion decision and entry ban on a third
country national holding a valid residence permit from another Member State,
the consultation should start as soon as possible and does not need to be
delayed until a SIS alert has been made.

The Court decided the third and
fourth questions together – rephrasing them as the issue of the failure to
respond by the authorities of another Member State and what if any inferences
the expelling Member State is entitled to draw as a result.The first thing the Court noted is that the
Schengen system only applies to short visits of 90 days out of every 180.
Residence permits on the other hand are issued mainly under national law (para
41 – surprising considering how much of EU migration law has been made subject
to Directives). As noted above, the Returns Directive in principle requires
Member States to expel all non-EU citizens who are not (or no longer) lawfully
present, but where the person concerned has a valid residence permit in another
Member State, he or she must be entitled to travel to the Member State which
issued the residence permit. He or she cannot be expelled to a third country
(or his or her country of origin), except where he or she fails to return to
the other Member State, or on grounds of national security or public policy
(para 45).

So how to interpret the latter
exception? The Court reminded the Finnish authorities that in determining
whether a third country national is a public policy or national security risk,
the ‘Member State is required to assess the concept of ‘risk to public policy’,
within the meaning of Article 7(4) of Directive 2008/115 on a case-by-case
basis, in order to ascertain whether the personal conduct of the third-country
national concerned poses a genuine and present risk to public policy, bearing
in mind that the mere fact that that national has been criminally convicted is
not sufficient by itself to present such a risk’ (para 49). This refers to a
prior judgment on the voluntary departure rules in the Returns Directive,
discussed here;
it’s striking that there’s a high threshold to apply the ‘public policy’ clause.

Clearly, although the facts are a
matter for the national court, the EU Court possibly had doubts about whether
the conviction of E met the requirements for expulsion to a non-EU country. The
Court acknowledged that the Finnish authorities could issue an alert (entry
ban) against E but they would have to withdraw it if the Spanish authorities
did not withdraw E’s residence permit. The Court recognised that the Spanish
authorities had failed to respond to the requests of their Finnish counterparts
in a reasonable period of time. But the consequences of that failure are not
meted out on the individual. Instead the Court held that so long as the
residence permit had not been withdrawn, irrespective of the failure of the
Spanish to comply with their duties under the consultation procedure, the
Finnish authorities are under an obligation to withdraw their alert to stop
re-entry. At that point the Finnish are free to put the third country
national’s details on their own national alert system to prevent re-entry into
Finland, but this does not have EU wide consequences. (Note that the proposed new
legislation on returns and the SIS would set a deadline to reply to
consultation requests, but would still not expressly determine what happens if
the Member State does not reply in time).

Finally, the Court addressed the
first question – could E rely on the provisions of the Schengen Convention to
prevent his expulsion to Nigeria, or are those provisions only legally binding
(and accessible) to States? The Court found in favour of E – he is entitled to
rely on the consultation procedure which gives rise to legal effects of
importance to him (para 57). The reasoning of the Court was that as the
consultation procedure is set out in a clear, precise and unconditional manner
it is capable of giving rise to rights for individuals. Further, if in the
consultation procedure, the state which issued the residence permit decides to
maintain it, that also gives rise to a clear, precise and unconditional
obligation on the expelling Member State to withdraw any alert to prevent
re-entry into the Schengen area which it may have put in place (though it can
keep a national re-entry ban in place) (para 59).

Commentary

This is a very interesting, if
rather complex case. Three things are worth noting from it. First, as the Court
has done in the case of the Dublin
III Regulation, it has found that administrative provisions of EU laws which
govern what states are supposed to do with people produce legal effects on
which the affected people may rely. The individual can rely on EU law even
where it is written in terms of inter-state procedures. The requirement is the
same as that for direct effect – the provision must be clear, precise and
unconditional.

Secondly, the Court gives
priority to the residence permit which has not been withdrawn over the
expulsion decision and entry ban. So long as a Member State does nothing to
withdraw a residence permit, another Member State cannot expel outside the
Union the third country national except on limited grounds (but can oblige him
or her to go to the Member State which issued the residence permit). It does
not matter that the Member State which issued the residence permit has failed
to comply with the rules on consultation.

Thirdly, the complex intersection
of the Schengen Convention, an agreement among Member States originally outside
the scope of EU law and only integrated in an incomplete manner by the
Amsterdam Treaty in 1999, and EU law proper – the regulations and directives –
moves in the direction that the EU adopted measures are gradually replacing the
provisions of the Convention. There is no ‘backward’ movement whereby Member
States can ‘recover’ flexibility under the Convention which has been ruled out
by subsequent EU law provisions. Indeed, this judgment demonstrates that EU law
principles have prevailed over the intergovernmental nature of the Schengen
Convention, not the other way around.